January 26, 2006

The judge's record strongly suggests that he is an eager lieutenant in the ranks of the conservative theorists who ignore our system of checks and balances, elevating the presidency over everything else....

Judge Alito's refusal to even pretend to sound like a moderate was telling because it would have cost him so little....

Senate Democrats, who presented a united front against the nomination of Judge Alito in the Judiciary Committee, seem unwilling to risk the public criticism that might come with a filibuster — particularly since there is very little chance it would work. Judge Alito's supporters would almost certainly be able to muster the 60 senators necessary to put the nomination to a final vote.

A filibuster is a radical tool. It's easy to see why Democrats are frightened of it. But from our perspective, there are some things far more frightening. One of them is Samuel Alito on the Supreme Court.

There's something missing from this argument, even if you accept the premise -- which I don't -- that Alito's an eager ideologue. What good would the filibuster do? How is it a remedy for the problem? So it's a "radical tool." Quite aside from the "radical" part, a tool is supposed to function for a particular use. Is the NYT just recommending a foot-stomping routine? How would more senatorial talking advance the cause of the Democrats? They've already talked so much, and they haven't budged public opinion about Alito. They need to make us like them for the next election, and I can't see how filibustering Alito gets them any closer to that goal, which, unlike stopping Alito, is not a lost cause. Is it?

Well...it doesn't look like the NYT is going to get what they want. A lot of the members of the Gang have come out against the filibuster. I think they've finally realized there is not only NO support for a filibuster, but the public overwhelmingly supports the confirmation of Judge Alito. It's a no-brainer!!!

Ann: you buried the lead. The Times also seems mad that he "refused to pretend to sound like a moderate was telling because it would have cost him so little..." Most interesting. Never mind that he was under oath, and so "pretending" about anything would seem to be problematic. The call for foot stomping seems to be based in part on Alito's refusal to play the game.

I am taking this discussion to email because Blogger is really screwing the pooch here right now. Getting all sorts of ugly pages and messages about them being down "now" for planned maintenance from 4pm-4:30 PST (which obviously is not "now.") Too hard to fight through it to post.

I would prefer not to see Samuel Alito on the Supreme Court. Indeed, were I a Senator, I would likely vote "no" on confirming him. But in my view, that's not enough, just by itself, to support a fillibuster, especially where, as here, the likely result of such a fillibuster would be the elimination of the fillibuster as applied to judicial nominations. The problem with those screaming for a fillibuster on the left is two-fold:

1. Their failure to play long-term chess rather than a game of mindless aggression.2. The insistence that "if we stand up for something, we'll get lots of votes!" No, if you stand up for something POPULAR, you'll get votes.

The argument for a filibuster is directed solely at those who would 1) vote for cloture and 2) who could wobble on the nuclear option. In arguing for a filibuster, the Times is directing its attention to the "gang of 14."

Deep down, the Times knows that the Alito/Roberts appointments is a horrible domestic defeat for liberals. Why not try anything and everything.

This is a rather comical foundation for an editorial that claims to define "moderate."

And what has pushed the old gray lady to such extremes? To quote the Wikipedia article above:

"It was thought that a spectacular action, such as a political assassination, would ignite a revolutionary fervor among the working classes.... It is likely that this attitude was a result of the difficulty anarchists were having fomenting revolution through traditional means."

Just replace "political assassination" with "filibuster" and "anarchists" with "coastal elitists" (or what have you).

Is it clear that Senators Warner, McCain and others, would vote to invoke the nuclear option?

And I thought that it took 67 votes to change the Senate rules. I understand that the Majority Leader "reserved the right to change" the filibuster rule at the beginning of the session. But would a court (ultimately the Supreme Court) uphold this "reservation?"

See here for the argument that the nuclear option would not be effective.

As it stands right now, there are enough Democrat Senators to filibuster Alito. Only Ben Nelson has indicated support for the nominee.

Given the pressure from the New York Times and the far Left, how can the Democrats not attempt a filibuster when they have the votes?

Kos (Armando) has a comment that suggests a strategy for extending debate leading to a filibuster that would give cover to Senators from red states like Landrieu.

It's now clear that a fillibuster will not "have the votes." Assume that all Republicans + Johnson + Bill Nelson are "yea" on confirm and on cloture. That's 57. Sens. Salazar and Landrieu have both said that while they are "nay" on confirm, they are "yea" on cloture. That's 59. Several other Senators, including Feinstein and Jeffords, have suggested they're in the same boat. Cloture will pass, albeit not by much. Of course, Kossacks will proceed to call for Harry Reid's head on a platter.

Brylin,It doesn't take 67 votes to change the Senate rules, per se - rather, it takes a simple majority to change the rules but, the rules permit the motion to change the rules to be filibustered. The practical consequence of this is that the only time that the Senate can avoid a filibuster on a rule change is before it accepts the rules of the previous Senate, i.e., when it is not operating under the Rules of the Senate, which is something that only happens on the day the Senate convenes for a new Congress.

I have a post explaining how this squares with the rules and proceedings clause here.

You are correct that Senator Frist claimed that he was not accepting the rules, but for reasons stated here, I don't think this amounts to anything of significance:

"Certainly, it's true that Frist made a declaration, of sorts: 'Right now, we cannot be certain judicial filibusters will cease. So I reserve the right to propose changes to Senate rule XXII, and do not acquiesce to carrying over all the rules from the last Congress.' 151 Congressional Record S14 (1/4/2005). However, even if we take Frist's statement at face value, it amounts to a statement that Frist doesn't like the rules, nothing more. He requests no action on his statement, files no motion, and the idea that he can simply declare that one or more rules of the Senate is no longer in operation, by personal fiat, seems very strange to me, and unsupported by any precedent, rule or evidence of which I'm aware. To challenge the rules, he would have to actually challenge the rules; see generally, Riddick's Senate Procedure, pp.1220-24.

Many times in recent Senate History - since 1917 - efforts have been made at the beginning of each session to actually change the rules. But Frist's statement scarcely rises to an attempt to change the rules, by comparison to previous attempts: In 1917, a Senator wishing to dispense with the rules raised a question with the Chair (Riddick, supra, at 1220); in 1949, a formal motion was filed (id. at 1221) -- 'In the Eighty-third Congress on January 3, 1953, a motion was made "that in accordance with article 1, section 5 of the Constitution which declares that '* * * Each House may determine the rules of its proceedings. * * *,' the Senate take up for immediate consideration the adoption of rules for the Senate of the Eighty-third Congress', (ibid.) The same motion was filed on January 3, 1957, at the commencement of the eighty-fourth Congress, and again in 1959 (ibid.). In each of seven successive attempts to change the rules at the opening of a new Congress - in 1961, 1963, 1965, 1967, 1969, 1971 and 1975 - motions were filed (id. at 1222 n19).

Frist cannot simply declare that one or more of the rules are no longer in operation; certainly, he can 'g[i]ve himself the option of revisiting the rules regarding judicial filibusters' by reserving - as does every Senator - 'the right to propose changes to Senate rule XXII,' and arguably he could make a motion at the beginning of the 109th Senate that one or more rules no longer operate. But he did not, and cannot reserve the right to do so later in the session: the Senate either changes its rules at the beginning of the session, or by failing to change them, it accepts them, including their internal provisions for changing the rules, per Senate Rule V(2) ('[t]he rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules')."

By the way, I should add that, although I do not support the nuclear option (or at least, not in any form which seeks to declare the filibuster unconstitutional) I think it would absolutely be effective. Quite aside from being disingenuous in what it actually says, Brylin, the People for the Soviet Way article doesn't even begin to make "the argument that the nuclear option would not be effective." It opines that it would be a terrible idea, but makes no argument that it wouldn't work.

And, Simon, don't forget that at least 4 Supreme Court Justices (Breyer, Stevens, Ginsburg and Souter) believe in People for the "Soviet" Way. One more swing vote (O'Connor or Kennedy) constitutes a majority!

Brylin-I really don't follow how either of the Senate rules you cite contradict what I've said on the matter, and I don't follow - in light of Walter Nixon v. United States, 506 U.S. 224 (1993) - what relevance the views of the Supreme Court are on the matter?

If a simple majority of the Senate upholds a procedural ruling of the chair on an appeal to the floor, said ruling is by definition correct, under the rules of the Senate. That is regardless of the actual text of the rule, or how bitterly the ruling violates it.

Accordingly, it only takes a simple majority to de facto amend any Senate rule, should a simple majority of the Senate choose to make such de facto change. The use of the fillibuster in each case accordingly relies on the self-restraint of the majority of the Senate to respect it.

Which means the survival of the fillibuster relies on the self-restraint of the minority, since a minority that refuses to restrain itself will anger the majority into supporting rulings of the chair which gut it.

So, the question is, is the New York Times so passion-blinded that they are willing to destroy the fillibuster for a symbolic denouncement, deliberately trying to destroy the fillibuster (by creating a precedent where it is not respected), or so sure of the self-restraint of at least six of the seven Republicans in the Gang of Fourteen that they think the fillibuster wouldn't be overturned by a ruling from the chair?

According to the rules of practical politics 101, the middle of the road democrats cannot afford to filibuster Alito without losing crucial votes back home. There are enough of them to vote yes on cloture even if they are voting no on Alito. All Republicans will vote yes on cloture, and that means 55 out of the box. Only five are needed from the Democratic camp.

With the three democratic yes votes on Alito that leaves two who could vote no on Alito but yes on cloture. Only two.

We can put up odds as to who they will be, but I think you can count on at least Lieberman and one other, probably Baucus or one of the Gang of Seven.

There will be no filibuster. The Old Grey Lady can not count any more.

Landrieu and Salazar (and likely Feinstein) constitute "yes" on cloture, "no" on confirmation votes. The current theory at Kos is that one or more of Chaffee, Collins, and Snowe will join a "bipartisan fillibuster."

Matt-Sen. Snowe will absolutely not vote to sustain a filibuster, even if she fully intends to vote no on the nominee. Not only has she said as much, but her record during the previous nuclear standoff is clearly indicative of this.

Brylin -I don't think that point has anything to do with the matter I thought we were talking about. The Supreme Court would likely not sustain a challenge regarding the rules of the Senate, because it is a nonjusticiable question, to answer which would show a lack of respect for a co-ordinate branch of government, which is precisely the point that Nixon, 506 U.S., stands for, a proposition that no member of today's court disputed. My argument therefore doesn't pale before five votes, because it is a question that the Court will not answer.

I don't mind talking about the other issues you raise - Bowers, and the damage to the rule of law created by the living constitution theory etc. - but I'm not going to in this post, as I think it'll confuse the point I'm trying to focus on. ;)

Simon, you made my point exactly by your comment on the Bowers/Lawrence decisions.

And as to the non-justiciability issue, the more recent case is Vieth. There were only 4 votes for non-justiciability there. How confident are you that the Texas reapportionment case will get 5 votes for non-justiciability?

The point is that no one can predict that the Court will follow its own precedents in political cases. And this is a political case with a capital P.

Brylin, I'm now totally confused. I'm not sure how I "made [your] point exactly by [my] comment on the Bowers/Lawrence decisions," since I didn't pass any comment on those cases (specifically declined to, in fact), and as for Vieth - Wh...? Vieth has absolutely nothing to do with the matter at hand, its a redistricting question, not one about the rules of Congress; that may also be a question that raises a question of justiciability, but so do a lot of other totally unrelated issues. Citing Vieth as being relevant because it has a justiciability question is like citing a fourth amendment case in support of an eighth amemdment proposition just because both cases require the plaintiff to have standing.

"I can't see how filibustering Alito gets them any closer to that goal, which, unlike stopping Alito, is not a lost cause. Is it?"

The sooner the D's are a lost cause, the better--once they're a permanent, and shrinking minority, then the R's can fracture and the real policy arguments will be between the conservatives and the more-or-less libertarians.

Hey, I can dream, can't I??? And seriously, I'd love to have somebody trying to hold the R's to their (sometime) small-government ideals.